Section 268 IPC: Public Nuisance

Section 268 of the Indian Penal Code, 1860 defined public nuisance. It covered an act or illegal omission causing common injury, danger or annoyance to the public or people in the vicinity, as well as conduct that must necessarily cause injury, obstruction, danger or annoyance to persons exercising a public right. This article explains the provision under the law applicable immediately before the Bharatiya Nyaya Sanhita, 2023 came into force on 1 July 2024.

Text of Section 268 IPC

Meaning of Public Nuisance Under Section 268 IPC

Section 268 was framed around harm or interference affecting the public, a section of the public in the vicinity, or persons exercising a public right. The provision could arise from a positive act or from an illegal omission. The statutory focus was therefore broader than a purely private inconvenience suffered by an individual.

The section also made clear that a common nuisance did not become lawful merely because the same activity produced some convenience or advantage. The existence of a benefit did not, by itself, excuse conduct satisfying the definition.

Essential Ingredients of Section 268 IPC

1. An act or illegal omission: There must be conduct by way of an act, or an omission that is illegal.
2. Public or community impact: The conduct must cause common injury, danger or annoyance to the public or to people in general dwelling or occupying property in the vicinity; or it must necessarily affect persons who may use a public right.
3. Nature of the interference: In the public-right branch of the section, the consequence may be injury, obstruction, danger or annoyance.
4. Connection with a public right: Where the second branch applies, the interference must concern persons who may have occasion to use a public right.

Section 268 Is a Definition, Not the General Punishment Provision

A frequent source of confusion is treating Section 268 itself as if it prescribed a sentence. It did not. Section 268 defined public nuisance. Where a public nuisance was not otherwise punishable under the IPC, the general punishment was found in Section 290 IPC.

Public Nuisance and Private Nuisance

Section 268 IPC dealt with public nuisance for criminal-law purposes. Its language required a common or public dimension: injury, danger or annoyance to the public or people in general in the vicinity, or necessary interference with persons using a public right. A dispute causing inconvenience only to a particular individual or concerning purely private rights does not automatically become a public nuisance merely because the word "nuisance" is used.

Examples of Conduct That May Raise Public Nuisance Issues

Whether conduct amounts to public nuisance depends on the proved facts and statutory ingredients. Situations capable of raising the issue may include unlawful obstruction of a public way, activities creating common danger or serious annoyance in a locality, or conduct interfering with the public use of a way, river, channel or other public right. The existence of a public impact must still be established in the particular case.

CrPC Section 133: Conditional Order for Removal of Nuisance

Under the pre-BNSS procedural law, Section 133 of the Code of Criminal Procedure, 1973 empowered specified Executive Magistrates to make a conditional order in circumstances including unlawful obstruction or nuisance in a public place or a way, river or channel lawfully used by the public; certain trades or occupations injurious to community health or physical comfort; dangerous structures or trees; hazardous excavations; and dangerous animals.

The proceeding under Section 133 CrPC was preventive and remedial in character. Depending on the statutory ground, the Magistrate could require removal of an obstruction or nuisance, regulation or discontinuance of specified conduct, repair or removal of a dangerous structure, fencing of an excavation, or other action authorized by the provision.

Other CrPC Provisions on Public Nuisances

Sections 133 to 143 of the Code of Criminal Procedure, 1973 formed the part of Chapter X dealing specifically with public nuisances. They addressed matters including service of the conditional order, obedience or showing cause, disputes concerning the existence of a public right, inquiry, local investigation, making an order absolute, interim injunctions, and prohibition of repetition or continuance of a public nuisance.

Section 143 CrPC: Repetition or Continuance

Section 143 CrPC empowered a District Magistrate, Sub-divisional Magistrate, or other duly empowered Executive Magistrate to order a person not to repeat or continue a public nuisance as defined in the IPC or under any special or local law. Disobedience could have consequences under the applicable penal provisions, including Section 291 IPC where its ingredients were satisfied.

Evidence Relevant to a Public Nuisance Case

Depending on the allegation, relevant evidence may concern the nature and location of the act or omission, the number or class of persons affected, the existence and character of the asserted public right, the injury, obstruction, danger or annoyance caused, inspection reports, photographs or plans, testimony from affected persons, and official records. The precise evidentiary requirements depend on whether the proceeding is a prosecution, a preventive proceeding under the CrPC, or another statutory action.

Frequently Asked Questions

What was public nuisance under Section 268 IPC?

It was an act or illegal omission causing common injury, danger or annoyance to the public or people in general in the vicinity, or necessarily causing injury, obstruction, danger or annoyance to persons who may use a public right.

Did Section 268 IPC itself provide punishment?

No. Section 268 supplied the definition. Section 290 IPC provided the general punishment for public nuisance where the case was not otherwise punishable under the IPC.

What was the punishment under Section 290 IPC?

For a public nuisance not otherwise punishable under the IPC, Section 290 provided a fine which could extend to Rs. 200.

What happened if a nuisance continued after an injunction?

Section 291 IPC applied where a person repeated or continued a public nuisance after a public servant lawfully authorized to do so had enjoined the person not to repeat or continue it. The punishment could extend to six months of simple imprisonment, or fine, or both.

Could an advantage to some people excuse a common nuisance?

No. Section 268 expressly stated that a common nuisance was not excused on the ground that it caused some convenience or advantage.

Which law is this page describing?

This article describes Section 268 IPC and the related CrPC framework applicable immediately before the Bharatiya Nyaya Sanhita, 2023 and Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024.

This page provides general legal information and is not a substitute for legal advice on the facts of an individual case.